General principles of international law imposing liability on actors for their illegal acts, or for the adverse consequences of their lawful activities, are relatively well developed at a general level, and are also reflected in the Articles on State Responsibility adopted by the International Law Commission (ILC) in 2001. In relation to environmental damage, however, the liability rules are still evolving and are in need of further development. Environmental damage refers here to damage to the ‘environment’, which has generally been defined in treaties and other international acts to include four possible elements: (1) fauna, flora, soil, water and climatic factors; (2) material assets (including archaeological and cultural heritage); (3) the landscape and environmental amenity; and (4) the interrelationship between the above factors. Most legal definitions of environment do not, therefore, include people and their property, although this is changing as a result of the increasing intersection of international environmental law with the area of human rights protection.
Liability rules at the domestic or international level serve a variety of purposes. They may be a form of economic instrument that provides an incentive to encourage compliance with environmental obligations. They may also be used to impose sanctions for wrongful conduct, or to require corrective measures to restore a given environmental asset to its pre-damage condition. Finally, they may provide a technique for internalising environmental and other social costs into production processes and other activities in implementation of the polluter pays principle.
States have long recognised the role of liability for environmental damage, as well as the inadequacies that exist. Principle 22 of the Stockholm Declaration recognised gaps and called on states to ‘co-operate to develop further the international law regarding liability and compensation for victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction’. The 1982 World Charter for Nature did not directly address liability, although it called for degraded areas to be rehabilitated and for individuals to have access to means of redress when ‘their environment has suffered damage or degradation’.